JUDGMENT : BHUWAN GOYAL J. 1. D. B. Criminal Leave to Appeal No. 866/2024 has been filed under Section 419 (i)(iii) of the Bhartiya Nagarik Suraksha Sanhita, 2023 by the appellant - State, whereas, D.B. Criminal Appeal No.300/2023 has been filed under Section 3 72 of Cr.P.C. by the appellant-complainant - Dinesh assailing impugned Judgment and Order dated 24.08.2023 passed by Additional Sessions Judge No.1, Bayana, District Bharatpur in Sessions Case No.36/2021 (15/2012) titled as "State of Rajasthan vs. DAuji @ Dadu & ors.", vide which accused-respondents viz. Hansa, Veero, Atar Singh @ Atara Gurjar, Sahab Singh @ Sabo, Surendra and Gordhan have been acquitted for the offences under Sections 3 02 , 302/149, 341, 323/149 & 148 of the INDIAN PENAL CODE and Section 3 /25 of the ARMS ACT by extending benefit of doubt. 2. The facts of the case in short are that on 10.12.2010, complainant Dinesh (P.W. 11) submitted a written report (Ex.P/11) at Police Station Rudawal to the effect that in the intervening night of 09.12.2010 and 10.12.2010 at about 12.30 a.m., his brother Bijendra was sleeping under the tinshed of the house and other family members were sleeping in the rooms, when, after consultation, Bhagmal, Gordhan, Soni alias Sohan Singh, Pritam, Darab, Sabo alias Sahab Singh, Jagan, Ajab, Bhagwan Singh, Rajesh, Jagan, Ramsahay and 10-12 other masked persons, armed with guns, pachphera, katta and sticks, came with the intention of killing Bijendra. Gordhan and Darab had Pachphera in their hands. Bhagmal had a 12 bore gun, Ramsahay and Jagan had guns, Jagan had a katta, Sabo had a stick, Pritam had a Pachphera, Jagan, Bhagwat and Bhagwan Singh had sticks in their hands. As soon as they came, they called out to Bijendra, on which Bijendra came out of tinshed into courtyard and Gordhan fired a shot from Pachphera to kill Bijendra. As soon as Gordhan fired, everyone started firing, out of which one of the bullets hit Bijendra near his shoulder, due to which everyone got scared and kept watching the whole scene from inside their rooms through the windows and the jungalas. Bulbs were burning in the courtyard outside. In the light of which, these people were clearly visible to them. This incident was witnessed by Buddhi, Ramprasad, Jagan etc. When the incident was happening, they informed Rudawal Police Station through mobile. By the time police arrived, accused had already left. Bulbs were burning in the courtyard outside. In the light of which, these people were clearly visible to them. This incident was witnessed by Buddhi, Ramprasad, Jagan etc. When the incident was happening, they informed Rudawal Police Station through mobile. By the time police arrived, accused had already left. Bijendra was brought to Bayana for treatment, from where he was referred to Bharatpur but he died on the way before reaching Bharatpur. This incident was committed due to enmity etc. 3. On the basis of said written report, F.I.R. No.334/2010 was registered for the offences under Sections 147 , 148, 149, 323, 341 & 302 of I.P.C. After investigation, police submitted charge-sheet against accused Dauji, Gajra and Dhundhi for the offences under Sections 147 , 148, 149, 323, 341 & 302 of I.P.C. and Section 3 /25 of the ARMS ACT before the Judicial Magistrate, Bayana, District Bharatpur but investigation qua accused Hansa, Veero, Atar Singh, Sabo @ Sahab Singh, Surendra and two other culprits who were members of Prem Singh Dacoit was kept pending under Section 173(8) of Cr.P.C. 4. The concerned Judicial Magistrate took cognizance of aforesaid offences against Dauji, Gajra and Dhundhi and committed the case to the court of Sessions, from where it was transferred to the court of Additional Sessions Judge No. 1, Bayana, District Bharatpur (for short 'trial court' hereinafter). The charges were framed against accused Dauji and Gajra for the offences under Sections 3 02 /149, 148, 341, 323/149 of I.P.C. and accused Dhundhi for the offences under Sections 3 02 /149, 341, 323/149 & 148 of I.P.C. and Section 3 /25 of the ARMS ACT . The trial court recorded statements of total 16 prosecution witnesses. Thereafter, on an application under Section 3 19 of Cr.P.C. filed by the complainant - Dinesh, trial court vide Order dated 21.02.2014 took cognizance of offences under Sections 147 , 148, 302 & 302/149 of I.P.C. and Section 3 /25 of the ARMS ACT against accused-respondents Gordhan, Hansa, Veero, Atar Singh @ Atara, Sahab Singh @ Sabo and Surendra. 5. Thereafter, on an application under Section 3 19 of Cr.P.C. filed by the complainant - Dinesh, trial court vide Order dated 21.02.2014 took cognizance of offences under Sections 147 , 148, 302 & 302/149 of I.P.C. and Section 3 /25 of the ARMS ACT against accused-respondents Gordhan, Hansa, Veero, Atar Singh @ Atara, Sahab Singh @ Sabo and Surendra. 5. After hearing arguments, trial court framed charges against accused-respondent - Gordhan for the offences under Sections 147 , 148, 323/149, 341 & 302 of I.P.C. and Section 3 25 of ARMS ACT and against remaining accused-respondents for the offences under Sections 147 , 148, 323/149, 341 & 302/149 of I.P.C. and Section 3 /25 of the ARMS ACT . During the course of trial, trial court vide Order dated 15.02.2018 separated trial qua accused Dauji, Gajra and Dhundhi, who were subsequently acquitted vide Judgment and Order dated 01.09.2018. So far as accused-respondents are concerned, after conclusion of trial, the trial court passed judgment and order dated 24.08.2023 acquitting them also for the alleged offences. Hence, these criminal leave to appeal and criminal appeal have been preferred by the appellant-State and complainant, respectively. 6. Heard learned Public Prosecutor, learned counsel for the complainant and learned counsel for the accused-respondents. 7. Learned Public Prosecutor and learned counsel appearing for the appellant-complainant have jointly submitted that from the evidence available on record, the prosecution has established commission of offences of murder of the deceased Bijendra by the accused-respondents beyond all reasonable doubt. But the trial court has erred in not believing the evidence on record and acquitted accused-respondents without any cogent reasons. They have, therefore, prayed that present criminal leave to appeal and criminal appeal may be allowed. 8. On the other hand, learned counsel appearing for the accused-respondents has opposed leave to appeal as well as appeal and submitted that prosecution utterly failed to establish its case against accused-respondents beyond all reasonable doubts. There are material contradictions in the testimony deposed by the prosecution witnesses. He has also submitted that main accused Dauji, Gajra and Dhundhi were already acquitted by the trial court vide judgment dated 01.09.2018 and no appeal was filed by the appellant - State or complainant against their acquittal and said judgment had attained finality. There are material contradictions in the testimony deposed by the prosecution witnesses. He has also submitted that main accused Dauji, Gajra and Dhundhi were already acquitted by the trial court vide judgment dated 01.09.2018 and no appeal was filed by the appellant - State or complainant against their acquittal and said judgment had attained finality. He has also submitted that the trial court after appreciating entire material as well as evidence available on record has rightly passed the judgment impugned herein, which does not warrant any interference by this Court. 9. We have considered the arguments and have gone through impugned judgment and record of the trial court. 10. In the instant case, as per the prosecution story, accused-respondents along with 10-12 other masked persons, armed with guns, pachphera, katta and sticks, came with the intention of killing Bijendra and opened fire upon Bijendra resulting into his death. 10.1 In this regard, if we examine the evidence on record, the criminal prosecution was launched on the written report (Ex.P/11) submitted Dinesh (P.W. 11), who in his examination-in- chief has stated that incident took place at around 12.30 a.m. in the night of 09.12.2010, when after consultation, Bhagmal, Gordhan, Soni, Jagan, Ajab, Darab, Pritam, Sabo, Rajesh, Jagan, Ramsahay and 10-12 other people came; they were having pachphera and guns in their hands. He knew the accused who committed the incident. But this witness has only named accused-respondents Gordhan and Sabo as assailants and did not name remaining accused-respondents. Similarly, in his police statement (Ex.D/1), this witness except Gordhan has also not named other accused-respondents as assailants. Though, this witness has stated that there was a bulb burning in the courtyard, in the light of which he saw the incident but P.W. 26 - Rajendra Kumar Sharma, who is the Investigation Officer, has stated that in the site plan (Ex.P/15), presence of electric light has not been mentioned at Place 'X' and W-1. It is also noteworthy that P.W. 11 - Dinesh in his cross-examination has stated that he saw shot fired on his brother from place Y-1 shown in Ex.P/15 but his witnessing the incident from said place is also doubtful because P.W. 26 - Rajendra Kumar Sharma, the Investigation Officer has admitted in his cross-examination that place W-1 was not visible while standing at place 'Y'. Further, neither any gun has been recovered at the instance of accused-respondent Gordhan nor the bullet from the body of the deceased has been seized. It is also worth mentioning that complainant Dinesh (P.W. 11) has not mentioned in his report that bullet fired by Gordhan hit Bijendra and nor there is any mention in the Fard Panchayatnama (Ex.P/13) that deceased died due to bullet fired by Gordhan. In our considered opinion, if this witness had seen accused- respondent Gordhan firing on Bijendra, then there would have been a clear mention about this fact in the report (Ex.P/11) as well as Panchayatnama (Ex.P/13). In this context, it is also worth mentioning that a perusal of the rojnamcha report (Ex.P/22) shows that it has only been mentioned therein that some people entered the village with the help of Gordhan and they tried to forcibly take away minor girls; when Bijendra stopped them, they shot him. There is no mention in Ex.P/22 that Gordhan shot him. 10.2 P.W. 12 - Budhi, who is stated to have come at the scene of occurrence at the time of incident, has also not named accused-respondents except Gordhan. Further, in his examination-in-chief, he has stated that Bhagmal called him that Vijendra sustained gunshot, then he woke up, which also shows that he did not see Bijendra getting shot with his own eyes. 10.3 Further, P.W. 13 - Anguri, who is wife of deceased Bijendra and P.W. 14 - Dropati, who is mother of deceased Bijendra, have also not deposed anything against Sahib Singh, Veero, Hansa, Atar Singh, Surendra in their statements, though, they have stated in their statements that Gordhan fired shot on Vijendra but P.W. 13 - Anguri has admitted in her cross- examination that when bullet hit Bijendra, she did not reach the spot; she reached half an hour later. P.W. 14 - Dropati has admitted in her cross-examination that after Bijendra was shot, the assailants left the spot and then, all of women reached near Bijendra. She has admitted that no bullet of accused present in the Court hit his son Bijendra. Thus, from the evidence above, the fact that both these witnesses saw the incident of firing on Vijendra and the bullet fired by accused-respondents hit Bijendra, has not been proved beyond all reasonable doubt. She has admitted that no bullet of accused present in the Court hit his son Bijendra. Thus, from the evidence above, the fact that both these witnesses saw the incident of firing on Vijendra and the bullet fired by accused-respondents hit Bijendra, has not been proved beyond all reasonable doubt. 10.4 P.W. 15- Kaluaa has, though, named accused-respondent Gordhan and Sabo but in his police statement (Ex.D/3), he has stated that he did not recognize the person who fired shot. No identification parade of accused-respondents was conducted by the police in the presence of this witness. The statement of this witness was also recorded after two days of the incident i.e. on 11.12.2010 and no reason for delay in recording his statement has been forthcoming on record. 10.5 P.W. 17 - Jagan has also named only accused- respondent Gordhan and except him, he did not name any other accused-respondents. Further, a perusal of the site plan (Ex.P/15) shows that gun shot was stated to be fired by accused Gordhan from place 'Y' which hit the deceased Vijendra at place 'X' and this incident is stated to be witnessed by P.W. 17 Jagan from place 'W- 2' in his house shown from mark 3' but it reveals that place of incident was not visible and it was not possible for this witness to see accused firing on deceased from place W-2 shown in site plan (Ex.P/15). 10.6 P.W. 18 - Ramprasad has stated in his cross- examination that before he reached the place of incident, accused had left towards forest. Thus, from the testimony deposed by this witness, it has not been established beyond reasonable doubt that he witnessed the incident in the present case. 11. It is pertinent to note that from the evidence available on record, it reveals that there was previous enmity between complainant party and the accused Gordhan. It is also pertinent to note that no weapon of offence has been recovered by the police at the instance of any of the accused-respondents. Even, there is no FSL Report regarding empty shell of the seized cartridge. Further, the main accused Dauji, Gajra and Dhundhi, were already acquitted by the trial court vide Judgment and Order dated 01.09.2018, which was not challenged either by the State or the complainant and thus, same had attained finality. Even, there is no FSL Report regarding empty shell of the seized cartridge. Further, the main accused Dauji, Gajra and Dhundhi, were already acquitted by the trial court vide Judgment and Order dated 01.09.2018, which was not challenged either by the State or the complainant and thus, same had attained finality. Thus, from the evidence on record, the prosecution has failed to establish its story against accused-respondents beyond all reasonable doubt. 12. In view of the above discussion, this Court finds no ground to interfere in the well reasoned Judgment and Order dated 24.08.2023 passed by the trial court. 13. Accordingly, the criminal leave to appeal as well as criminal appeal filed by the appellant-State and the complainant both are rejected and the judgment and order dated 24.08.2023 passed by the trial court is affirmed. 14. The record of the learned trial court be sent back forthwith.